THE COGNITIVE MECHANICS OF ELDER ABUSE.

• Date: 01 January 2019
• Author: Lonie, Jane

I INTRODUCTION

Legal capacity involves decision making. Modern theories of decision making delineate three phases. The first phase is the generation of options; the second phase is the selection of options; and the third phase is the initiation of action (1). Cognitive impairment can impede any one or more of these phases of decision making, increasing an individual's vulnerability to financial and emotional harm.

In a recent High Court Judgment around binding financial agreements (BFAs), undue influence was said to occur when 'a party is deprived of free agency in entering into an arrangement'. Unconscionable conduct is defined as a special disadvantage that 'seriously affects the weaker party's ability to safeguard their interests'. Six factors were noted to be of relevance in assessing whether undue influence has occurred. Two of these reference the opportunity for reflecting (on advice received, for example, and available options or facts relevant to the decision).

Cognitive impairment in a number of different domains, including those of memory and executive function can adversely impact or prevent the person's ability to reflect in the process of decision making. For example, how might an individual reflect upon facts, advice, and different options if he/she is unable to retain such information for long enough to do so? How might an individual reflect upon the potential future impacts of a decision if he/she is not capable of thinking in abstract terms or is unable to consider future hypothetical scenarios? How may an individual safeguard his/her own interests when they are no longer able to remember what happened yesterday, judge or appraise the intentions of others, detect errors of an incongruous nature, or reason in an autonomous manner?

Cognitive impairment is a well-established risk factor for elder abuse (2) and financial exploitation. (3) It is a primary contributory factor in cases of undue influence (4) and disputed testamentary capacity. (5) Whilst the link between cognitive impairment, undue influence, elder abuse and testamentary capacity is well established, the details of this relationship, including our understanding of the risk factors, are not. It has been suggested that 'many Australians are likely to be affected by elder abuse if our understanding of this issue does not improve, as this prevents the establishment of evidence-based prevention and response programs'. (6)

The focus of this paper is around the mechanics of elder abuse. It examines the question; What is going on cognitively speaking, when the wishes and intents of an elderly client are overborne by another person in a manner amounting to unconscionable conduct or undue influence?

With this question in mind, the tightly related concepts of capacity, unconscionable conduct and undue influence are examined in their roles as vehicles for elder financial abuse using the recent judgment of Fisher-Pollard v Piers Fisher-Pollard (7) as a basis for discussion.

It is suggested that although the law treats the concepts of legal capacity and undue influence as separate entities, in so far as undue influence presupposes that the individual had capacity, in reality the two rarely operate in isolation and are all but inseparable in a clinical setting. That is to say, whilst the law requires that capacity must exist for undue influence to occur, undue influence almost always occurs in the context of diminished capacity. An understanding of the relationship between cognitive impairment and elder abuse is required to differentiate undue influence from supported decision making and to facilitate the selection of appropriate forms of decision-making support in cognitively impaired elderly clients.

II CONTEXTUAL FACTORS IN ELDER ABUSE

There are a number of key factors setting the medical context for the problems of diminished capacity, undue influence and elder abuse. One relates to the prevalence of cognitive impairment among the elderly. The Australian Bureau of Statistics suggests that by 2050 1/5 of the population will be greater than 65 years of age (8) and just under one million Australians will be living with a diagnosis of dementia. One in every ten persons aged 65 years or older live with dementia. The figure rises to 3/10 by 80 years. (9)

A second key factor relates to the manner in which the dementias manifest themselves. The cellular changes within the brain that accumulate and eventually result in dementia begin 20 years prior to the point at which the first symptom appears (during the period that we refer to as 'normal aging'). (10) Cognitive impairment does not begin suddenly but rather develops in an insidious manner and deteriorates slowly and progressively over time. As a result, individuals who go on to develop dementia pass through a prolonged phase of cognitive impairment prior to coming to the attention of the medical profession. This pre-diagnostic phase was formerly referred to as mild cognitive impairment (11) and now mild neurocognitive disorder (12).

A The Interval of Legal Mayhem

The final piece of the puzzle relates to the difficulties and delays that exist around diagnosing mild neurocognitive disorder and dementia. The detection of mild neurocognitive disorder is reliant upon the administration of appropriately sensitive formal neuropsychological measures. (13) Individuals with mild neurocognitive disorder often perform normally on cognitive screening tests. GP's are notoriously poor at detecting and diagnosing dementia, missing up to 90% of early stage cases in clinical practice. (14) As a result, there are extensive periods of time across which elderly individuals are significantly cognitively impaired as a result of an underlying or emerging dementia that is yet to be diagnosed or investigated.

It is during this time period, which I have referred to as the interval of 'legal mayhem', where problems around legal capacity in elderly clients typically arise. During this interval the foundations are laid for multiple tribunal hearings in the years that follow and costly contested estate matters further down the track. I will return to discuss this interval within the context of the recent judgment of Fisher-Pollard, (15)

Current dementia prevalence estimates do not account for cognitive impairment arising at the Mild Neurocognitive Disorder phase of a neurodegenerative (dementia) process and can therefore be expected to underestimate the true prevalence of cognitive impairment among elderly Australians. Data from the University of Michigan, Health and Retirement Study indicates the incidence of Mild Cognitive Impairment is at least double that of dementia in older adults between 70-84 years of age and just under double from the age of 85 years onwards. (16) Mild Cognitive Impairment has been shown to exert a significant adverse impact on the financial management capacity of an individual (17) and as noted above, is a well-established primary risk factor in elder financial abuse.

The incidence and prevalence of elder abuse is alarming. American figures suggest one in 10 seniors over the age of 60 living at home are subject to abuse, (18) and one in five over the age of 65 are subject to elder financial exploitation. For every one case of elder financial exploitation that is reported a further 43 cases never come to light. (19)

The literature suggests that we, as solicitors, financial advisors, wills and estates practitioners and clinicians, are encountering a minority of these people--seeing the tip of an iceberg. There are good reasons why this may be the case. Individuals who experience loss of cognitive and financial management capacity, are often unaware it is happening and remain confident in their capabilities. (20) Undue influence only comes to our attention when there is a third party, typically another sibling or relative, who ultimately loses out as a result of the undue influence and therefore objects to and challenges the decision. When such a party is not present, the decision goes...